M & S

[2006] FamCA 6

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 6 of 2005

File No. CAM 276 of 2004

BETWEEN:

Appellant Mother

-and-

Respondent Father

REASONS FOR JUDGMENT OF THE COURT

CORAM:  Finn J
DATE OF HEARING:        18 July 2005
DATE OF JUDGMENT:     27 January 2006

APPEARANCES:

Ms Tonkin of Counsel (instructed by McGuinness Eley Solicitors; DX 5709 Canberra ACT) appeared on behalf of the appellant mother.
Ms Druitt of Counsel (instructed by Farrar Gesini & Dunn; DX 5700 Canberra ACT) appeared on behalf of the respondent father.

APPEAL SUMMARY

MATTER:  M v S
APPEAL NUMBER:  EA 6 of 2005
  (CAM 276 of 2004)
CORAM:  Finn J
DATE OF HEARING:  18 July 2005
DATE OF JUDGMENT:                 27 January 2006

CATCHWORDS:

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – RESIDENCE and CONTACT – Whether the Federal Magistrate erred in failing to apply the test contained in Briginshaw v Briginshaw in finding, and whether the Federal Magistrate erred in finding, that there would be an “unacceptable risk” that the child would be exposed to scenes of violence in the mother’s household were the mother granted residence, in circumstances where no allegation of abuse of the child had been raised – Discussion of the application of s 68F(2)(g) and (i) of the Family Law Act 1975 in residence proceedings.
FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – PRACTICE AND PROCEDURE – Hearing – Whether a party should be permitted to change his or her position only in final submissions – Whether the Federal Magistrate erred in determining that a change of position during final submissions occurred “at the end of the case” in circumstances where that final position was not taken during the presentation of the evidence, but only in final submissions.

Caselaw cited:

M and M (1988) FLC 91-979

Briginshaw v Briginshaw (1938) 60 CLR 336

Gronow v Gronow (1979) FLC 90-716

Legislation cited:

Family Law Act 1975 (Cth): s 94AAA(3), s 68F(2) – in particular paragraphs (g) and (i)

Appeal dismissed.

No order as to costs of the appeal.

This is an appeal by the mother against orders made by Brewster FM on 12 January 2005 which provided that the child of the mother’s marriage to the father, a daughter, A, born in July 1999, should live with the father and have contact with the mother (essentially each alternate weekend and for half the school holidays).
Prior to his Honour’s orders of 12 January 2005 there had, since the parties separated in October 2001, been various shared residence arrangements in place for the child. Such a shared arrangement still operates by virtue of a stay of his Honour’s orders of 12 January 2005 granted on account of the mother’s appeal. That shared arrangement apparently involves “a week about” arrangement.
The appeal was heard by me on 18 July 2005. I heard it as a single Judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
At the conclusion of the hearing on 18 July 2005, it was agreed that I would reserve my decision pending delivery of a judgment in another appeal heard in Canberra by the Full Court of this Court, as it was considered that that Full Court judgment could have relevance to the issues which arise in this appeal.
To date, however, the judgment of the Full Court has not been delivered, and at a mention of this matter on 20 January 2006, it was agreed by the legal representatives of both parties that I should proceed to deliver judgment in this matter.

The issues which arise in this appeal

In this appeal, the mother relied on only two grounds of appeal. The first and principal ground concerned his Honour’s finding that there was an unacceptable risk of the child being exposed to scenes of violence if she resided with the mother. The second ground asserted that his Honour had erred in his understanding of the father’s ultimate position at trial in relation to the living arrangements for the child.
Even though in arguing the appeal Counsel for the mother dealt first and foremost with the issue of the risk to the child of exposure to violence, I consider it convenient to deal first with the issue of the father’s position at trial.

The father’s position at trial

As I have earlier indicated, since the parties’ separation in October 2001, when the child was a little over two, there has been a shared residence arrangement in place for her. Against the background of the shared arrangement, his Honour recorded in paragraph 6 of his judgment that the mother’s position before him was that the child should live with her and attend a school in the area of Canberra in which the mother lives; that the mother’s “alternative position” was that “if she cannot be the residential parent, then the father should be”; and that “a third option” was the continuation of the shared arrangement.
Then in paragraph 7 of his judgment, his Honour recorded that the father had “initially proposed that the shared arrangement continue” with the child attending a school “approximately midway between” the two parties’ residences, and that his alternative proposal was that the child live with him and attend a school near to his home. However his Honour then went on to say:
7.… At the end of the case however his position, as I understood it, was that, given the mother's opposition to the shared arrangement, it would be inappropriate to continue that arrangement and that [the child] should live with him.
By her second ground of appeal the mother asserts that his Honour erred in finding “that the father’s position at the end of the case changed in that he (the father) considered it ‘inappropriate to continue the (shared care) arrangement’ given the mother’s opposition and he sought that the child live with him.”
It was explained by Counsel for the mother in her oral submissions to me that the expression “end of the case” in this ground as drafted in fact meant the end of the evidence, with Counsel’s submission being that at no time during the evidence did the father move from the shared arrangement position as indeed was recognised by Brewster FM during the hearing (see Transcript 8/12/04, page 111, line 36), and that it was only in final addresses made some two weeks after the conclusion of the evidence that it was suggested on the father’s behalf that he should have sole residence.
The submission made to his Honour in this regard by Counsel for the father at the opening of her final address was (Transcript 21/12/04, page 148):
[COUNSEL FOR THE FATHER]: Thank you, your Honour. Your Honour it is the fact that the father, in his documents, wants shared parenting and in the alternative that he could (indistinct) residence of the child [A]. Unfortunately, the case is that the mother has rejected shared parenting and so, your Honour, whilst we are of the view that the Court could seek to impose shared parenting, this is a situation, your Honour, where we say the Court would not because of the mother’s apparent antipathy to the position, that she is prepared to act so contrary to the interests of the child at this stage that it would not be logical for the Court to follow through in terms of shared parenting.
Counsel then concluded her final address with the following submission (Transcript 21/12/04, page 159):
[COUNSEL FOR THE FATHER:] So what we would say to your Honour is that your Honour has been left with the situation where the mother’s behaviour at Court, the (indistinct) of the application, had unfortunately showed the very impediment in her parenting and so prevented (indistinct) prevent the Court from ordering eighty percent of the child’s time or an eighty/twenty arrangement as she preferred it and therefore the Court would grant residence orders in favour of the father as he seeks in his response. Is there any other matter your Honour would ask me to consider?
Before me it was further submitted in support of the mother’s appeal that no evidence was put forward regarding any change in the father’s position, nor did he seek to amend his minute of orders sought. Thus, it was submitted his Honour had erred in saying that “at the end of the case, the father’s position changed.”
I would not be prepared to hold his Honour made an error which would justify my interference, simply because he said that “at the end of the case the father’s position changed.” It seems clear, and indeed appeared to be conceded on behalf of the father before me, that the father’s position did in fact change in his Counsel’s final address from the position which he had adopted during the hearing of the evidence. But with respect to Counsel for the mother, I consider it would be an unduly technical approach to hold that the case had ended at the conclusion of the evidence and that an appealable error existed because his Honour regarded final addresses as constituting “the end of the case”.
Rather it seems to me that the real question that this ground raises is whether a party should be permitted to change his or her position only in final submissions.
Whatever may be the position in other areas of the law, it is my view that in a case concerning the future living arrangements for a child, the parties should be at liberty to urge upon the Court in final submissions whatever proposal would appear in the light of the evidence overall to be in the best interests of the child in question, subject always of course to the other party having the opportunity to be heard in relation to such a proposal.
In the present case, immediately after Counsel for the father had made the submission which is quoted in paragraph 13 above, his Honour asked Counsel for the mother whether there was “anything in reply.” Counsel for the mother did raise some matters in reply, but she did not respond or indeed even refer to the father’s proposal for sole residence made in his final submissions.
Further in relation to this issue of the mother being accorded procedural fairness with regard to the father’s changed position whereby he sought sole residence, it must be remembered that the mother had said in her oral evidence that while her first preference was for the child to live with her, her second preference would be to have the child living with the father and going to school near his house as “opposed to shared care” (see Transcript 8/12/04, page 25, lines 6-10).
There can thus be no question that the mother was not aware of the possibility of, or did not have the opportunity to be heard in relation to, an arrangement whereby the child would live primarily with the father. I thus conclude that the mother’s second ground of appeal has not been established.

The risk to the child on account of exposure to scenes of violence

The findings and conclusions of Brewster FM

In order to examine the mother’s principal complaint in this appeal, it is necessary first to explain briefly his Honour’s reasons for determining that the child should primarily reside with her father.
In his judgment, having explained the factual and procedural background to the case, the parties’ applications and the statutory provisions governing the determination of proceedings concerning the residence of children, his Honour went on to discuss the matters set out in s 68F(2) of the Act as they applied to this case.
It is unnecessary to refer in any detail to his Honour’s analysis and findings in relation to the s 68F(2) matters save in relation to the matter of violence (to which I will shortly return) for the reason that his Honour found (in paragraph 42 of his judgment) that there was “nothing to separate the parties as parents” and also because there is no challenge in this appeal to such analysis and findings (other than in relation to the matter of violence).
Following his consideration of the s 68F(2) matters, his Honour turned to consider whether the shared regimen should continue. Having considered the advantages and disadvantages of that regimen, he concluded (at paragraph 40) that it was not appropriate to continue it. His principal reasons for not continuing the shared arrangement were the poor communication between the parties and the mother’s opposition to the shared arrangement.
It was thus necessary for his Honour to consider the parties’ competing proposals for sole residence. In so doing, he referred first (in paragraph 45) to certain advantages for the child if she lived with the mother; those advantages being the presence of a half-brother in the mother’s household and the fact that at least in the short term the mother would be able to care for the child on a full-time basis. His Honour also commented (in paragraph 45) that the mother’s preference for sole residence (with the father) as opposed to shared residence demonstrated a willingness to put the child’s interests ahead of her own, and therefore also counted in her favour.
However his Honour went on to observe (at paragraph 46) that there was one very significant matter which indicated that he should not make an order that the child live with the mother, and that was “the issue of violence”. His Honour then referred to, and indeed relied on, the incidents of violence in the mother’s household which he had previously referred to in his examination of the s 68F(2) matters. Accordingly, it is necessary at this point that I return to his Honour’s discussion of those incidents in the course of his examination of s 68F(2) matters.
In that context, his Honour began his discussion of the issue of violence by referring (at paragraphs 22 and 23 of his judgment) to the provisions of paragraphs 68F(2)(g) and (i). Those paragraphs are as follows:
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
…
(i)any family violence involving the child or a member of the child’s family;
His Honour first recorded that both parties reported some violence in their relationship when they lived together, and he referred to each party’s evidence in this regard in the following way:
24.… The mother said to Dr [S]:
“I tried to hit (the father) but I wasn't good at hitting. Five or six times he hit holes in walls”.
25.The father says that on at least four occasions the mother physically attacked him. He says she has attempted to punch him in the head with her fist and threw objects including plates and cups at him. He admitted to Dr [S] that he may have hit the back of the wall and that he on one occasions kicked the mother in the back of the leg.
I mention here that one of the mother’s complaints contained in her first ground of appeal is that his Honour failed to place any weight or sufficient weight on the evidence of the father’s violence towards the mother.
Having thus referred briefly to the evidence of the violence between the parties, his Honour then turned (in paragraph 26) to what he described as “two episodes involving the mother and [her new partner CG] that cause … concern.” He then set out paragraph 56 of the father’s affidavit which was in the following terms:
In about late October or November 2003 [the mother] rang me. She said words to the follow effect "[A] and I are in [A’s] room. [CG] punched the door and made a hole. I am very scared. I don't know what's going to happen". [The mother] rang me between five and seven times that night between about 7 and 9 pm. She kept hanging up if she heard [CG] coming. During one of the calls she whispered "I can't talk. He's back. I've got to go.". I kept saying to [the mother] "Where's [A]?". [The mother] replied "She's in the room with me." I said "I'm going round to pick up [A]." [The mother] said "Don't because [CG] is angry." I said "I don't care. I want my daughter to be safe." [The mother] said "It's okay. He's gone. I'm going to call the police." I subsequently became aware, I recall through [the mother], that [CG] was taken into police custody overnight. A few days later [the mother] said to me during a phone conversation words to the effect "[CG] was arrested again because he was found here." [The mother] was referring to their home.
Having quoted the above passage, his Honour then commented (at paragraph 27) that the father was mistaken in his belief that CG was arrested as a result of the incident on that night and that there were in fact two incidents, with the second occurring on 21 October 2003. His Honour then quoted from a statement given by the mother to the police in relation to the incident on 21 October 2003 as follows:
On the evening of Tuesday, 21 October 2003 I was at home with my de facto partner [CG]. I am currently renting a home … in the Australian Capital Territory. [CG] resides here permanently with me, however he is not on the lease.
By 10 pm I was in bed in the master bedroom with [CG] when I tried to talk to him about an argument we had yesterday. I then got up out of bed and turned some lights on in the house. I went into the kitchen and made myself a glass of orange cordial. As I returned to the bedroom I noticed that [CG] was doing something with the bedroom door handle. It appeared to me that he had been trying to remove the inside door handles whilst sitting on the bed.
While I was in the hallway near the bedroom [CG] was laughing at me in a derogatory manner. He said something to me at this time it made me upset. I then threw the cordial from the glass I was holding towards his face, which hit him. I did not throw the glass though.
I then walked quickly into the kitchen as I didn't know what to expect. From the kitchen I could hear that [CG] had left the bedroom and was in the shower.
I stayed in the kitchen and loungeroom crying for some time while [CG] was down the other end of the house. I think [CG] said something to me while he walked into the kitchen. I can't recall the exact words but he said something like "I can't stand you". I then followed [CG] from the kitchen, down the hallway and into the bedroom [CG] went to the wardrobe where I think he was packing a bag.
Our verbal argument continued and I think I was yelling and crying.
To get his attention I pushed [CG] as he was making me angry. At this time we were facing each other.
I saw [CG] put his right arm back behind his shoulder. Then I felt a sharp pain in my left ear and side of my face.
He then pushed me with both hands out of the hallway before slamming the bedroom door. I looked at the door and saw that the door had broken near the bottom.
I then went into the loungeroom and rang the police on the home telephone. While I was on the phone I could hear [CG] doing something. I was scared that [CG] was going to come and take the phone from me before the police answered.
After I hung up the phone I noticed that [CG] had destroyed the bedroom door and ripped it off its hinges. The door was in my daughter's room in pieces.
At this time [CG] came into the kitchen where I was. I was very angry and my face was very sore.
I remember trying to hurt [CG], maybe by pushing him but I didn't end up hurting him in any way.
At this time [CG] had grabbed me from behind to stop me hurting him. We then pushed each other a number of times while we continued to argue.
I remember picking up a doll's house that was in the loungeroom and throwing it onto the ground towards [CG]. I don't think this landed on or struck [CG].
At this time [CG] left the house and went out either to his car or the garage.
A short time later I heard him leave. I then rang the police again and told them what had happened. The police arrived a short time later.
[CG] and I have been partners since March 2003 and I am currently fifteen weeks pregnant with a child to him.
During the time we have been together there has been a number of incidents of domestic violence. [His Honour’s emphasis] [CG] is a much larger person than I am. [CG] is about six foot, one inch and weighs about 90 kilograms. I am five foot eleven and weigh about 75 kilograms.

His Honour next referred to CG’s version of these events contained in an affidavit which he had filed, and quoted the following passages from that affidavit with respect to the first and second incidents previously referred to by his Honour:
At the time [the mother] was pregnant and easily upset. I can't remember for sure what the argument was about but I do recall becoming angry and frustrated and leaving the house. On my way I hit a door quite hard with the back of my hand in frustration. The blow broke the skin of the door although it did not hurt my hand. It was something I was not in the habit of doing but I was extremely angry and frustrated at the time. I recall that I was away from the house for a couple of hours. When I returned as I remember we made up quite quickly and things returned to normal.
…
We were arguing in the bedroom. [The mother] was mad at me but I can't remember why. She was getting violent towards me and yelling and becoming increasingly abusive. [The child] wasn't with us at the time.
About a month prior to this in similar circumstances, but at a different time, the incident described above, [the mother] actually attacked me and I was concerned that this not happen again.
In the course of the argument [the mother] turned and left the bedroom. I closed the door and decided to try and lock myself in the bedroom until she calmed down, by removing the door handle. She came back and saw me doing this and threw a glass of cordial in my face. Then she left but came back again and advanced on me, furious, and backing me into a corner.
It was like she was hysterical and I did not know what to do. I remember thinking of the old black and white movies where a slap on the face brought some of their senses. I did slap [the mother] in the face and immediately stopped her in her tracks, but it was a stupid thing to do and I've regretted it ever since.
[The mother] left the bedroom and I went after her and closed the door behind. As I was doing so she pushed at the door with her foot. The door slammed and the door broke. The bottom half of the door actually broke away and the grill was stuck.
[The mother] had left the room and I pulled at the door and broke the bottom piece off and then pulled the remaining door off the frame. I put the pieces of the door in the spare room and I left the house. However, as I was going through the kitchen [the mother] threw a doll's house at me. I went to a friend's house but about 1 am the police arrived and arrested me.
His Honour then stated (in paragraph 30 of his judgment) that the mother now adopted CG’s version of these events and that she resiled from her statement to the effect that there had been a number of incidents of domestic violence and that she said she was pressured by the police into making that allegation.
At this point in his judgment his Honour concluded that his assessment of the father was that the kicking incident, which he had admitted to, would have been “an isolated incident of violence”. On the other hand, his Honour concluded that he was “more concerned about the relationship between the mother and [CG]” and that he was concerned about the two incidents to which he had referred, and he went on to say:
31.… In particular I have grave concerns as to the allegation by the mother that "during the time we have been together there have been a number of incidents of domestic violence." I do not accept her explanation that the police pressured her into making these allegations.
As I earlier indicated, his Honour later returned to the issue of violence in the context of determining with which parent the child should principally reside (having rejected shared residence as an option). In this latter context, his Honour said:
46.… On any version the incidents that I have related, particularly the one that led to police intervention, are disturbing. Moreover, as I have indicated, I have grave concerns as to the mother's statement that during the time that she and [CG] had been together there had been a number of incidents of domestic violence. As I have indicated, I reject her evidence that this was an embellishment made at the urging of the police. Whilst it is possible that her statement was exaggerated I am not satisfied that it does not represent the true situation.
His Honour then noted the importance which the Act attaches to the issue of violence when decisions are made concerning the residence of a child, and he went on to reach his ultimate conclusion that if the child was to live full-time with the mother there would be “an unacceptable risk that she would be exposed to scenes of violence.” In his Honour’s opinion, that risk outweighed the benefits for the child of living with the mother. The precise words used by his Honour in expressing his conclusion are as follows:
47.Subsection 68F(2) refers to issues of violence in three paragraphs. Such issues are also addressed in sections 43(ca) and 68K. It is obvious that the legislature regards issues of violence as very important when decisions are to be made as to the parent with whom a child should reside. It is clear that the legislature expects courts to give considerable weight to the need to protect children from the possibility of exposure to violence when making such decisions. In my opinion if [the child] were to live full time with her mother there would be an unacceptable risk that she would be exposed to scenes of violence. In my opinion that risk outweighs the benefits of an order that [the child] live with the mother. Accordingly, I propose to order that she live with the father.

The grounds of appeal directed to the issue of violence

The mother’s first ground of appeal asserts that his Honour “erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion”:
(a)in failing to apply the Briginshaw test when determining the issue of violence;
(b)in failing to place any or sufficient weight on the evidence of the father of violence towards the mother;
(c)in finding that a “possibility of exposure to violence” constitutes an unacceptable risk; and
(d)in finding that there was an unacceptable risk of the child being exposed to violence is she resided with her mother.
Ground 1(a) and (c)
The assertions contained in paragraphs (a) and (c) of ground one can, in my view, be disposed of quite briefly.
The assertion in paragraph (a) that his Honour failed to apply “the Briginshaw test” when determining the issue of violence, would appear to be made against the background of the principles contained in the High Court’s decision in M and M (1988) FLC 91-979.
However, it is important to remember that that case was essentially concerned (as was explained by the High Court at page 77,078) with allegations by a mother that the “father had sexually abused the child and that the child’s welfare would be put at further risk” if the father was granted was granted access (or unsupervised access) to the child.
The High Court held in its judgment that in considering an allegation of sexual abuse – that is, it should be emphasised, an allegation that sexual or, it can be accepted, any abuse, has occurred – “the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p. 362” (at 77,080-081).
The passage from Briginshaw which refers to a standard of proof to which their Honours were referring is as follows:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
However having held that a finding that abuse has occurred requires proof according to the Briginshaw standard, their Honours went on in M and M to recognise that there can be parenting cases where if the abuse is not established according to the Briginshaw standard, the Court may nevertheless consider that custody (residence) of or access to (contact with) a child should not be granted to a particular parent if such custody or access (residence or contact) would expose the child to an unacceptable risk of sexual (or other) abuse. That this is so is clear from the following passages of the High Court’s decision (at 77,081):
… It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
… there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. …
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. …
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC ¶91−830 at pp. 76,240−76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC ¶91−758 at p.75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor)(1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is important for present purposes to note that the High Court considered that it is the ordinary civil standard of proof which applies in relation to a finding of “unacceptable risk of abuse”, as is clear from the penultimate paragraph of its judgment where it said (at 77,081):
In the present case [the trial Judge] was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.
In the present case there was no allegation that the child had been abused in any way. Thus there was no necessity for the Briginshaw test to be applied by his Honour. Accordingly, the complaint contained in paragraph (a) of ground one is, with respect, misconceived.
Paragraph (c) of ground one is also, with respect, misconceived and does not require further consideration because, as will be seen from paragraph 47 of his Honour’s judgment quoted above, his Honour did not find (as is asserted by ground 1 (c)) that a “possibility of exposure to violence” constituted an unacceptable risk. Rather his finding was that if the child was to live full-time with her mother, there would be an unacceptable risk “that she would be exposed to scenes of violence.” His Honour’s reference to “the possibility of exposure to violence” was made in the context of his interpretation of the various provisions of the Act which are concerned with the protection of children from violence or from exposure to violence including s 68F(2)(g) which contemplates “the need to protect the child from… psychological harm… that may be caused by… being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.”
Ground 1(d) and (b)
I will consider next the complaint in paragraph (d) of ground one, being that his Honour was in error in the finding according to the ground as drafted “that there was an unacceptable risk of the child being exposed to violence if she resided with the mother”, although it must be borne in mind that the actual finding by his Honour was that “there would be an unacceptable risk that she would be exposed to scenes of violence” if she were to live full-time with her mother.
It was accepted on behalf of the mother that in her new household there had been the two instances of violence which were recorded in paragraphs 26 and 27 of his Honour’s judgment. But the mother’s case, as I understood it, was that such incidents were not sufficient to form the basis of a finding that there would be an unacceptable risk to the child of exposure to violence if she lived in the mother’s household, and that that was particularly so when regard is had to the fact that on the first occasion the mother had taken steps to protect the child by contacting the child’s father, and also to the fact that the child was not present on the second occasion.
In support of this ground his Honour’s statements in paragraph 30 and 31 of his judgment that the mother had now adopted her new partner’s version of the second incident, and that she resiled from her statement to the police that there had been a number of incidents of domestic violence, were challenged. Also challenged was his Honour’s rejection of the mother’s explanation that the police had pressured her into making the allegations to them which she had made, with it being submitted that it was not open to his Honour to attach the weight which he did to the mother’s alleged statement to the police, given that she had not been cross-examined specifically in relation to that statement or any retraction of it. It was also submitted that the focus on these events at the trial had been on the mother’s credibility rather than on the issue of violence in her new household.
It is necessary, in my view, to set out at some length the cross-examination of the mother regarding these matters for the reason that it establishes that, notwithstanding the somewhat confused or even equivocal quality of the mother’s evidence, a finding that the child could well be exposed to scenes of violence in the mother’s household was open to his Honour. It also shows that, at least so far as his Honour was concerned, the issue of violence was very much a live issue from an early stage in the trial.
The first passage of transcript which appears relevant is as follows (Transcript 8/12/04, pages 25-26):
[COUNSEL FOR THE FATHER]: Just while we are on things reported, do you think you are a person who is easily pressured into making decisions that are inappropriate?--- [THE MOTHER:] Sometimes I've - I've been in the situation where I have been misled, or, you know, I've taken someone's advice and then regretted it later.
Yes.
You see, when you told us that you understood what Dr [S] had asked you about police involvement - - -?---Yes.
And you decided to not tell him the truth. That's right?---Yes.
And I take it that was very much a conscious choice of yours on the time you saw Dr [S]?---I'd already spent almost half an hour covering facts about my past and my parent's lives, and I felt time was limited.
All right. So you chose to tell a lie?---Yes.
But you knew it was going to be important in these proceedings, didn't you?---I knew I would have to explain it further and cover cross-examination on the issue as well. But as I said, the incident - I was pregnant, I overreacted to it, and I didn't think that it was necessarily police involvement as he would have taken it.
Then a little later, in the context of an objection from the mother’s Counsel apparently regarding the tender of the police statement and photographs relating to the second incident, the transcript reads (Transcript 8/12/05, pages 29-32 and 37-40):
FEDERAL MAGISTRATE: Yes. How can you say it is not relevant? There is one other photograph that is clearer. How can you say it is not relevant, [Counsel for the mother]?
[COUNSEL FOR THE MOTHER]: Well, I understand if it is relevant it is of marginal relevance. The father's position is that the shared care situation should continue.
FEDERAL MAGISTRATE: Correct.
[COUNSEL FOR THE MOTHER]: And that is 50 per cent of the time with the wife, and - - -
FEDERAL MAGISTRATE: Yes, but that is because, I would assume - people will make submissions about this - that he would say there are aspects that indicate the child should live with him, and have limited time with the mother. But there are other aspects that indicate a shared care arrangement is preferable, and on balance that is the way he goes. But there certainly should not go into the third extreme, he would say, which is to actually have the child living most of the time in a household where there - and I exaggerate for the point of the submission - where there is violence. And these sorts of - in section 44C(a) and 43C(a), 68F(2) and 68W, is it? Refer to violence. I understood it is an important part of any decision in relation to children.
[COUNSEL FOR THE MOTHER]: Yes, certainly. But indeed, if ---
FEDERAL MAGISTRATE: My view is they are relevant, and I admit them.
[COUNSEL FOR THE MOTHER]: If it pleases the Court.
FEDERAL MAGISTRATE: But there is going to be a statement as well, is there, a part of that exhibit? Is that right?
[COUNSEL FOR THE FATHER]: Well, ma'am, you have got before you another document, is that right?--- [THE MOTHER:] This one I was given?
Yes. And that is a copy of a document, the original of which was signed by you?---Yes.
So where is your signature on that document?---I believe it is on the foot of every page and at areas where things have been changed.
Right. And ma'am, this is a document you read at the time you signed it?---Yes.
And that is what you in fact pretty well dictated it to a police officer. Is that right?---Parts of it I dictated it, and then there was like periods when we had conversations and then we went back to dictating and then we had conversations and dictated it. I didn't just dictate it.
And on the top left hand side of the document, beside the date, it says:
This statement made by me accurately sets out the evidence which I would be prepared to give if necessary to give in Court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything which I know to be false or do not believe to be true.
Doesn't it?---It says that.
And you understood what you were doing was making a statement in the police matter of Police versus [CG]?---No, I didn't understand that.
You can see it is actually written on the document you have signed, isn't it? ---Yes.
And a document read by you, true?---I was under a lot of - - -
Ma'am, this is a document signed and read by you, isn't it?---Yes.
You led the police officers to believe that this was accurate?---No.
That it was true?---I disagree with the accuracy of it, which was my whole point in talking to the - - -
I tender that document, your Honour - - -
[THE MOTHER]: About particular parts about it. I felt that I was being persuaded.
[COUNSEL FOR THE FATHER]: Yes, I tender that document.
[COUNSEL FOR THE MOTHER]: No objection.
FEDERAL MAGISTRATE: Well yes, it is part of - - -
[COUNSEL FOR THE FATHER]: Perhaps part of the earlier.
FEDERAL MAGISTRATE: That is clearly so.
[COUNSEL FOR THE FATHER]: And I do apologise to the Court, your Honour. I did give the date of 23 October. It is in fact 21 October.
FEDERAL MAGISTRATE: Yes, I see that. Yes, those photographs, together with the statements, will be F2.
EXHIBIT #F2 PHOTOGRAPHS AND STATEMENT
FEDERAL MAGISTRATE: [Counsel for the father]?
[COUNSEL FOR THE FATHER]: Now, ma'am, you subsequently got a typed copy of that statement, is that right?---[THE MOTHER:] Yes.
And I think what you are now saying to the Court is there are parts of that statement that are untrue. Is that right?---There are parts of the statement that are misleading and do not depict the whole truth.
Can I suggest to you, they are misleading on this issue just the way your report to Dr [S] on page 2 about violence is misleading. Isn't that right?---Yes.
So you have, you say, and really in a very short space of time, misled Dr [S] knowing he is reporting to this Court, and misled the Australian Federal Police. Is that right?---No, I did not mislead the police. At the time they knew exactly what I had told them, but they led - they encouraged me to write things a certain way so that it could go against [CG]. I told the police the truth and they made me not say things as I had said them in the particular report. So that is not true.
So they made you. Is that what you are saying?---They encouraged. I was under a lot of pressure, I was emotional, I had four strangers in my house.
So are you under a lot of pressure here? Are you emotional here?---Yes.
Are you misleading us too?---No.
See, I suggest to you that on this night - - -?---Totally different circumstance.
See, I suggest to you that on this night, 21 October, what you wrote in this report was in fact accurate, and that now you want to tone it down because you understand it is a very bad look so far as these proceedings are concerned?---I disagree with that, because I spent many discussions with the DPP, and they were the ones who dropped the charges after talking to me and me talking to them about the reasons why. And I've been consistent with contacting the police, contacting the DPP, with the reasons why I wanted that document - not changed, but why I didn't think it was fair that [CG] had been arrested over it.
Ma'am, do you understand that your reaction is very typical of victims of domestic violence?---Yes, I was explained that at the time.
Yes, that it is really typical of people to make the allegation in the heat of the moment, in accordance, in effect, of what happens, and then to withdraw it because they actually want to continue to live with their partner?---I was explained that, yes.
And I take it, ma'am, you did, even when you made this complaint to the police, want to live with [CG]?---I don't think at the moment - when I was making that statement I don't think I was thinking clearly.
You didn't realise the implications of what had happened. Is that what you are saying?---I didn't realise he would be arrested. I didn't have a comprehension of that.
…
[COUNSEL FOR THE FATHER]: Are you turning to that affidavit, are you?---No, I am just still looking for the notes.
The father says that in July 2003 and October 2004, [the child] has said to him:
Mummy and [CG] argue.
Would you agree that you and [CG] are arguing, and have been since about July 2003?---We have the occasional argument.
And do you recall that on an occasion in October or November 2003 you actually rang [the father] and said to him:
[A] and I are in [A’s] room. [CG] has punched the door and made a hole. I'm very scared, I don't know what's going to happen.
?---I deny that.
Do you say you phoned him on the occasion of the police visit?---About the incident on 21 October?
Yes. Did you phone?---I can't remember.
See, I suggest to you that you actually rang [the father] numerous occasions that night, between five and seven times, between 7 and 9 pm?---Are you referring to the night that the door - that the hole punched in the door, when - - -
Yes?---Because that is when I had [the child] with me, or are you referring to the time I didn't have [the child] with me on 21 October?
So what you are saying is there are two separate occasions involving damage to a door?---Yes. I've made that clear in my affidavit.
Right. In respect of the first occasion, is that right, [the child] was with you?---The reason why I - - -
No, is that right? Is it the first occasion [the child] was with you, or the second? ---That I rang [the father]?
Yes?---I can remember ringing him on the first occasion.
And, what do you say you said to him?---Well, the issue, I believe, was something to do with [the father], because [CG] came home and he was upset, he was irate, he had heard something that one of [the father’s] friends had told him about me that wasn't true. And after the incident happened [CG] left the house and I rang [the father] to ask him, "Who has been saying things about me? Who would say that? Have you been saying things about me?"
Was [CG] drunk, or under the influence of intoxicating liquor?---No.
Were you scared, that occasion?---No.
How did the damage happen to the door?---[CG] was talking to me, he was getting angry. I was denying the allegation that he was saying to me, and he punched the door.
And where was [A]?---She was with me.
Right. So she saw this?---Yes.
Right. Did you get upset?---Pardon?
Did you get upset?---Did I get upset? I tried to maintain - in front of [the child] I had remained un-upset. And she didn't really pay much attention to the incident. She was a bit concerned about her door being broken. I remember I put a picture up on top of - like, over the top of the damage that had been done and she was fine. The time it happened I was actually in the middle of reading her a story and she was wanting me to finish the story rather than to talk to [CG].
And when you say he was irate, he was speaking loudly?---I can't remember.
Are you saying to this Court you can't remember how you were spoken to by an irate partner who came into the house and disturbed you when you were reading a story to your daughter, and punched a hole in the door?---You asked me whether it was loud, and I can't remember whether it was loud, I'm sorry.
Are you sure about that?---Pardon?
And you are sure about that?---I'm sure his voice was raised. I don't know whether he was screaming at me at the top of his voice, but I say that he had a raised voice. I wouldn't know whether - well, I can't really remember whether that was like loud. I mean, what is the definition?
See, have there been so many of these instances that you can't differentiate between them?---No, that's not true at all. There have not been.
Because you see, wasn't this a horrible incident?---When he punched the door?
Yes, and was accusing you of things?---We have had arguments in the past - - -
Sorry, is this a horrible incident or not?---Yes.
Right. And have you had many horrible incidents in the last year?---No.
So isn't it burned into your memory, what happened that night?---Whether his voice was loud or not?
Yes. Are the events of that night burned into your memory?---No.
No. Is that because there have in fact been many of these instances - - -?---No.
- - - and you actually can't tell the difference?---No.
And on the occasion of the telephone call when [the child] was with you, did [the father] ask you, "Where's [A]?"?---I believe he did ask about [the child].
And did you say, "She's in the room with me"?---No, definitely not, because she wasn't.
And did he say, "I'm going around to pick up [A]"?---No, he didn't say that.
And did you say, "Don't, because [CG] is angry"?---No. [CG] wasn't there at the time, when I rang [the father].
And did he say, "I don't care, I want my daughter to be safe"?---No, he didn't say that.
I suggest to you he then said, "It's okay" - that you said, "It's okay, he's gone, and I'm going to call the police"?---I deny that.
Now, did you telephone [the father] and tell him about the events of 21 October?---I can't recall. Do you mean on that night, or after, or - - -
On that night, did you phone [the father] and tell him what had happened?---I can't remember. I can't remember if I called him that night. I can remember talking to - I have told him about - I did tell him about the incident. I can remember ringing him from Court at one particular time but I can't recall whether I rang him that night.
Ma'am, do you say to the Court that if there had been any danger to your daughter, that you would have called her father to take her out of there?---She wasn't with me that night.
No, do you say to the Court, if there had been any danger to your daughter you would have phoned her father to get her out of there?---Absolutely. Such that I would take her to his house as well if I thought she was in any danger. But she is not.
And did you also tell [the father] that [CG] had been arrested for breach of bail, for coming back to the premises?---I must have. I can't remember the phone call but I probably mentioned it.

It will be seen that the mother was not cross-examined specifically as to whether or not she had stated to the police that during her time with CG there had been “a number of incidents of domestic violence”, or as to whether, if she had made that statement, she now resiled from it, and if so why. It is thus true that the mother never expressly resiled from the express statement that there had been a number of incidents of domestic violence. His Honour may therefore have somewhat mis-stated the position when he said in paragraph 30 of his judgment that the mother “resiles from her statement to the effect that there have been a number of incidents of domestic violence and says that she was pressured by the police into making that allegation.”
However, it must be remembered that in response to a question from the cross-examiner as to whether she led the police officers to believe that the overall statement to them was accurate and/or true, the mother seems fairly clearly to have said that she disagreed with the accuracy of particular parts of the statement and that she felt she was being persuaded, and a little later she said more clearly (Transcript 8/12/04, pages 31-32):
There are parts of the statement that are misleading and do not depict the whole truth.
…
… I told the police the truth and they made me not say things as I had said them…
In circumstances where the opportunity was not taken in re-examination to clarify which parts of her statement to the police were or were not true or were the results of pressure or persuasion from the police, I am not satisfied – notwithstanding his Honour’s apparent mis-statement in paragraph 30 – that he was then in error in concluding in paragraph 31 that he did not accept that the police had pressured the mother into claiming that during her time with CG there had been a number of incidents of domestic violence, and thus, in effect, that the mother had voluntarily made this statement.
But even without the statement in the police report concerning previous incidents of domestic violence, it would, as I indicated earlier, have been open to his Honour on the basis of the evidence before him to conclude that there would be a risk of the child being exposed to scenes of violence if she resided with the mother. It was also, in my view, open to his Honour to describe that risk as “unacceptable”. This description was particularly appropriate in circumstances where his Honour had to find some factor which would determine in which of either parent’s home the child should live, given that he had (in paragraphs 39 to 40) rejected a shared regime but had also found (in paragraph 42) that there was “nothing to separate the parties as parents.”
However that having been said, and without intending any criticism of his Honour, I venture to suggest that he could have reached the conclusion that the child live with her father on the evidence concerning the violence which had occurred in the mother’s home, without using the expression “unacceptable risk”. I say this because it must be remembered that that expression is not one which appears in s 68F(2), and it would seem that the case was not conducted before his Honour on the basis of the need for a finding of unacceptable risk of some form of abuse or exposure to some form of abuse.
His Honour undertook the required analysis of the s 68F(2) matters, and in so doing he dealt at considerable length (in paragraphs 22 to 31 of his judgment) with the matters of exposure to violence and violence specified in s 68F(2)(g) and (i). Then, having found nothing to distinguish the parents on the basis of the other s 68F(2) matters, he returned (in paragraphs 46 to 47) to the violence issue, or more precisely to the exposure to violence issue, and found it to be the matter which tilted an otherwise finely balanced decision in favour of the father.
In my opinion his Honour could well have said in the fourth sentence of paragraph 47 of his judgment “…I would be concerned that she would be exposed to scenes of violence” in the mother’s household rather than “there would be an unacceptable risk that she would be exposed to scenes of violence” in that household, and could have, on that basis, decided that the child should live with her father.
I make it clear that I do not consider that it was an error for his Honour to use the expression “an unacceptable risk”, as this can be seen as the level of risk which he considered would have existed for the child if she lived in the mother’s household and which then enabled him to make a distinction between the two households. I have made the observations which I have simply as a reminder that the obligation under the Act is to determine the best interests of the child who is the subject of proceedings under the Act by a consideration of the matters set out in s 68F(2) as they apply to the particular case.
It must also be remembered that the High Court’s decision in M and M from which the concept of “unacceptable risk” seems principally to emanate, was, as I said earlier, concerned with a case where there had been allegations of actual abuse. The High Court was thus there concerned with the standard of proof applicable to such allegations, although at the same time it recognised that there are some cases where although a positive finding of abuse cannot or should not be made, nevertheless the Court cannot exclude the possibility that abuse has occurred, or may occur, and will therefore have to assess whether the consequent risk of abuse to the child is unacceptable.
So far as the present case is concerned, it was necessary as I have earlier explained for his Honour to find some differentiating matter between the parties. He found that matter to be the risk that the child would be exposed to scenes of violence in the mother’s household. However it is also part of the mother’s appeal (ground 1(b)) that his Honour did not place sufficient weight on the evidence of the father’s violence towards the mother, and I therefore turn to consider that complaint.
For convenience I here repeat what his Honour said regarding the mother’s allegations of violence on the part of the father:
24.Both parties report some violence in their relationship when they lived together. The mother said to Dr [S]:
“I tried to hit (the father) but I wasn't good at hitting. Five or six times he hit holes in walls”.
25.The father says that on at least four occasions the mother physically attacked him. He says she has attempted to punch him in the head with her fist and threw objects including plates and cups at him. He admitted to Dr [S] that he may have hit the back of the wall and that he on one occasions kicked the mother in the back of the leg.
…
31.My assessment of the father is that the kicking incident that he admits to would have been an isolated incident of violence. I am more concerned about the relationship between the mother and [CG].
It was submitted by Counsel for the mother that his Honour was in error in attributing to the father only “an isolated incident of violence” having regard to the father’s evidence under cross-examination. The evidence of the father to which I was taken in support of this submission was as follows (Transcript 8/12/04, pages 114-118):
[COUNSEL FOR THE MOTHER]: If I could just go to paragraph 55, I got distracted, and I don't know whether you've answered my question. That's the only concern you have about [the mother] being the residence parent, that is I think you said her abusive nature?---Mm.
Yes?---Yes, and what, you know, what [the child] has witnessed I guess, from [the mother], what she hears from [the mother].
FEDERAL MAGISTRATE: Are you saying her abusive nature, you've seen the police report, you've heard it referred to?---Yes.
If that's true does it cause you concern?---Yes.
[COUNSEL FOR THE MOTHER]: The - - -?---I mean I can relate to what [CG] says when he gets attack, you know, I've witnessed it myself.
Well, I'm going to go to that. Page 7. You said to Dr [S] didn't you, this is what Dr [S] quotes:
He said about their disputes, 'At times I felt very frustrated'.
Did you say that to Dr [S]?---Yes.
And was that how you felt?---Frustrated, yes.
Continuing: 45
I may have hit the back of the wall.
Did you say that to Dr [S]?---Yes.
So, you hit the back of the wall did you…?---Yes, I said to Dr [S] that I could only recall one instance where I've hit a wall or a door, yes.
When was that and what circumstances? Was [the mother] pregnant at the time?---I believe I said to Dr [S] I couldn't remember if it was either in Queensland or when we lived back in [Canberra], I'd say it would have been when [the child] was an infant, yes, that's the case when we were back in [Canberra].
So, you say it was when [the child] was an infant?---I'm pretty sure I said to Dr [S] that I think it was when we were back in [Canberra], yes.
Do you say it was when [the child] was an infant?---Correct.
You hit the back of the wall?---Or a door.
Or a door?---Correct.
Was it the wall or a door or was it both?---I can't remember.
You can't remember?---It was one - - -
What damage did you do to the wall or the door?---I just sort of put a dent in it probably, the size of however big my hand is.
Well you put a hole in it didn't you?---I didn't go through it, no, it was just an indentation in the door.
Just an indentation in the door?---That's right.
[The mother] reports that whilst in Queensland you and she lived in three rental homes and in two of the homes repairs had to be made to the doors and walls because of holes:
[The father] had made by punching a number of doors.
?---That's not true.
Continuing:
And throwing a plate once at a wall.
Now, did you punch a number of doors?---I don't believe I did, no.
Well, she says you did?---Mm.
Of course she says that your relationship was volatile and of course you would say notwithstanding that you told Dr [S] you may have hit the back of the wall?---Mm.
It was all [the mother’s] fault?---Yes.
Of course it was?---Yes.
Because she's got an abusive nature?---It wasn't entirely all [the mother’s] fault. I guess a relationship takes two to break down.
Yes?---And obviously something starts - - -
And you and she might have had an unfortunate argument whilst [the child] was an infant which escalated to the extent that you either hit the back of the wall, which is what you told Dr [S]?---Right.
Or hit a door?---Correct.
Or perhaps you punched a number of doors making holes in them?---No, I never said that to Dr [S]. That was [the mother’s] statement.
Yes, it is, that's what she recalls?---That's right.
Throwing a plate at the wall in anger?---Yes.
You did that didn't you?---Yes, I had to catch it because it was thrown at me.
You haven't told Dr [S] that you threw a plate at the wall…?---No, I didn't.
So, you've minimised the fact that you were violent in the relationship towards her haven't you? Minimised that?---Minimised it perhaps.
Yes?---Forgot to mention something, yes.
Forgot to mention. Where Dr [S] says you gave a "fake, good profile". That's what he says. You gave a "fake, good profile". Do you know what that means?---Yes, probably that you're talking about yourself in an unrealistic way.
Yes?---I believe he said the same paragraph about [the mother] did he not?
Page 10:
Fake, good profile.
Trying to make out you're a lot better than you really are. You kicked [the mother] in the back of the leg didn't you?---Yes.
Was she pregnant at the time?---I don't think so, no.
Do you remember that incident?---I do, yes.
What did you do? What happened?---I was frustrated at [the mother] and I just remember being frustrated and kicking her in the back of the leg, yes.
Just out of sheer frustration?---Mm.
Unprovoked?---I don't know that it wasn't unprovoked. It was probably during an argument.
Did she call the police at that time?---No.
Did you cause her injury by kicking her in the back of the leg, bruising?---I don't think so.
You held her in a headlock in the back yard during an argument didn't you when - - -?---No, I didn't.
She argued with you about you drinking didn't she, from time to time?---That was a discussion that we had, yes. I don't know if drinking is socialising with friends.
Going to the pub?---Socialising with friends.
Going to the pub?---Not necessarily always at the pub, it was at people's houses.
I thought you raised that complaint:
Upset if I went to the pub.
That's what you said to Dr [S]?---Right. Yes.
Upset if I went to the pub.
?---Correct.
She argued with you if you went off to the pub with your mates?---Okay.
Isn't that right?---Yes.
She argued with you about gambling mortgage money didn't she?---I don't remember arguing about something like that, no.
See, in [Canberra] you patched a large hole in the living room door which you made with your fist, didn't you?---I don't remember, no. I'd say if I'd have made any damage, yes, I would have possibly fixed it.
It must be remembered that his Honour had the advantage (which I have not had) of seeing and hearing the father while he was giving the evidence which I have just set out. Given that advantage, I am not persuaded that his Honour’s conclusions regarding the father’s past violence were not open to him. Further, given the limitations on appellate interference with discretionary judgments on the basis only of weight (see Gronow v Gronow (1979) FLC 90-716 per Stephen J), I am also not persuaded that it would be open to me to interfere with his Honour’s decision on the basis of the weight which he attached to the father’s admissions of past violence towards the mother, being a lesser weight than that which he attached to his conclusions about the scenes of violence in the mother’s household.

Conclusion

In summary, therefore, neither of the grounds of appeal concerning the risk to the child of exposure to scenes of violence in the mother’s household (ground 1(d)), nor the weight attached to the father’s admissions of violence (ground 1(b)) have been established. Having regard to my earlier conclusions regarding the lack of substance in all other grounds, the appeal must be dismissed.

Costs of the appeal

At the conclusion of the hearing of the appeal, I received oral submissions in relation to the costs of the appeal.
In the event that the appeal was dismissed, the respondent father sought an order for costs in his favour in the sum of $6,500.
Notwithstanding the outcome of the appeal, I am not persuaded that the circumstances of this case justify a departure from the primary rule in the Act, being that each party bear his or her own costs.

Orders

That the appeal be dismissed.
That there be no order as to costs.

I certify that the preceding 69 paragraphs are a true copy of the reasons for judgment of this Honourable Court

Associate

[2006] FamCA 6

27 January 2006

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